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Tuesday, November 3, 2015

26 States File Suit to Stop EPA Clean Power Plan

From the Wall Street Journal:

President Obama’s palace revolution on climate won’t come off peaceably after all, as 26 states and dozens of business groups this week filed suits against his takeover of the carbon economy. For all Mr. Obama’s eco-abuses, the legal reckoning now at hand is the most important.

On Aug. 3 the Environmental Protection Agency finalized the so-called Clean Power Plan, or CPP, which orders states to reorganize their energy systems from power plants to electric outlets. But the EPA waited no fewer than 81 days until Oct. 23 to publish the rule in the Federal Register, a delay that matters in administrative law because publication formally opens the plan to judicial review. The average lag for the EPA this year on all other major rules is 27 days.

The EPA is stalling for time because the Obama crowd knows that states must rush to start the slow, capital-intensive and irrevocable transition away from fossil fuels over the next year or so to meet their 2020 “interim” targets. Even if the CPP is repealed by the next Administration, or junked by the courts, they’re hoping to intimidate the states and dictate the U.S. energy mix for a generation.

So the 26 Attorneys General and business lobbies are asking the D.C. Circuit Court of Appeals for a stay that would enjoin the CPP while the judiciary considers the legal merits. This would be unusual. Conventional regulatory litigation spools out over the years, with judges tending to defer to rule-makers.